Derrick Bell Dept. of Health Education and Welfare (Folder)

    HEW
Derrick Bell

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Derrick A. Bell, Jr.
Deputy Special Assistant to the Secretary 
for Civil Rights
Department of Health, Education and V/elfare 
330 Independence Avenue, S.V̂ .
Washington, D.C.

Dear Derrick;

I have not answered your letter of November 25 because 
I am punishing you for violating your President’s 
orders re economy! As a taxpayer, I protest the use 
of two pages of grade B stationery for a letter which 
includes such unnecessarily long and stupid paragraphs. 
Also, I regret the waste of the time of your fine 
secretary who probably had to spend most of that day 
taking aspirin when she should have been in a post- 
Thanksgiving state of euphoria.
Your brilliant conceptualization of a Title VI Alert 
Group is most timely and exciting.
It won’t work.

Sincerely,

Jean Fairfax

JF;df



D E P A R TM E N T O F H EA LTH . E D U C A TIO N . AND W ELFA RE
W A S H IN G T O N . D .C . 20201

OFFICE OF THE SECRETARY November 25, 1966

Miss Jean Fairfax 
NAACP Legal Defense and 

Educational Fund, Inc. 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Dear Jean;
Enclosed is a copy of a memorandum summarizing my idea as to how 
outside groups who are concerned about Title VI can more effectively 
assist in its implementation. I would doubt seriously whether the 
government would be willing to take on this coordination role and 
indeed the potential of the plan would be weakened if it did so.
This plan is based on my theory that government takes the most 
action in those areas where the demand for action is greatest.
In the Title VI area there are competing demands from those who 
want more action to enforce Title VI and those who want less.
During the last six to eight months, HEW has been taking action 
in the face of far greater demand for less action than there is 
for more action. This, from a political standpoint, is an un­
natural situation and probably cannot last for very long.
One would think that the necessity of substantial improvement in 
the area to protect the long-range Interest of the society to say 
nothing of its ideals would be sufficient basis for continued 
action despite any amount of pressures for less action. Unfor­
tunately, experience indicates that things don't work this way 
and regardless of the worth of a particular cause, very little 
gets done unless there is strong and continuing pressure on 
government to get it done.
While I am certain that Title VI would not survive a national 
referendum, there are many more people and groups who wish it 
to be effectively implemented than are able to effectively make 
their views known to both Congress and HEW. The Title VI Alert 
Group is one means by which those who care can make their 
desires known.



I look forward to hearing your views on this.
Sincerely,

Derrick A. Bell, Jr.
Deputy Special Assistant to the 

Secretary for Civil Rights

Enclosure



« - '  ‘ '' I  '■yy:i,..:J''I ■ ^ - ? . ; W v  ' - ■ ' - .  ■■

D errick

November 21, 1966

T i t le  VI A lert Group

I  have no objections to the d ra ft rcaponoe to the l e t t e r  from the ^
Aaooclatlon of U nlvcrnity Women (AAW) as attached, biit 
of support contained in  th e ir  l e t t e r  and conaidcrina it 
out rceont d lscu M lon . con c.m ln g  the need
the same kind* of preeeute on Congress »* tn te r a s t  L u ld  beOther side by our enemies, it aeoma th at th is  group s In te re s t  could oe
u til iz e d  in  a more e f fe c t iv e  fash ion ,

I  ece  the need fo r  o rg an lta tio n s suih os tho MUW end the members of the 
Leadership Conference on C iv il  R ights u n itin g  in  ^ n t  might be *

' T U l f ^  A lert croup. Host of these groups have lo c a l u n its  and p o te n tia l 
for r c a c h ln r a  great percentage of the l ib e r a l  people in  th is  country.
Fm  examnle th ere  are  almost 2 .000  NAACP branches; the Legal Defense 
Fund m Sk to in s con tact with some 200-300 cooperating l a s e r s ,  law school 
p ro fe ^ o ? s ! educators, e t c . ;  the Urban League branches throughout 
the co u n try  th ere  are  the lo c a l  o f f ic e r s  of A. P h ilip  ^ndolph s union 
a L  the l ^ a l  m in istry  of churches e f f i l ln t e d  with the N ational Council
of Cburchefi.

These groups could serve as a ready and in te re s te d  ^ t l e t  l " f ° ^ « l o n  
on T i t l e  V I. Tho new gu id elin es might be sent to  them, together with a 

, sumnary of inform ation on school '’“• '^ ''^Sstim i progress l a s W “ ^^  ̂
the prospects fo r  th is  y ear, n -  ^  khen com-

X r n » ‘’: r r i : L ? : e r t h : \ S ' : a l “s t  T l Z l  the com pl«ia.d-of
f a c i l i t y  i s  located  could be contact p o in ts fo r  our In v cstlg a to r.s . .0
io c n i g L i p .  c o f i r s c r v e  as in i t ia t o r s  o f  le t to r s  to  C o n g resses  a ^  
could L s o  make known through le t t o r s .  c o n fe « n c M .

T i t le  VI compllanco to  lo c a l school boards, h o sp ita l o f f i c i a l s ,  nows 
p ^ e r s ^ e tc ^  c e r ta in  other valuable uses fo r th e e , group, could be
found.

T we should In v etJtlca tc  cardfnlly the p o s s ib il i ty  of organizing

S.X it
of th is  kind of organization..

I  an ready to  d iscuss th is  m atter w ith you a t  g rea ter length  a t your 
coTtvcnience.



Unto ^cfjool of llarbarb ?Hniber£fitp 

Cambribse, iHlasfs;. 02138

April 10, 1972

Miss Jean Fairfax
NAACP Legal Defense Fund, Inc.
10 Columbus Circle 
New York, New York
Dear Jean:

It was certainly good to spend some time with you last 
weekend at the Washington Conference on Black Education.
There were some exciting sessions as well as enlightening 
ones, and I came away from the event with both new information 
and insights that I wishihad more fully incorporated in my 
paper.

I appreciated your comments on my paper, but did not 
appreciate learning at this late date that you consider my 
Wisconsin article a "sloppy effort". I don’t mind the 
criticism (although I do want you to re-read the article 
and provide more detail as to your criticism), but I was 
deeply disturbed that you should hold this view over so long 
a time without conveying it to me. As I told you in Washing­
ton, and as you will find when you compare the two papers, 
it is impossible to think the Washington paper is "brilliant", 
and conclude the Wisconsin paper is "sloppy". I fear that 
your initial conclusion about the Wisconsin piece stems more 
from your then total commitment to integration (and perhaps 
some subtle brainwashing by the Greenberg contingent at the 
Fund) than by whatever shortcomings the article contains.

But whether you agree with me or not, this is a dis­
cussion that true friends should have had two years ago,
I am, as you said in Washington, almost dangerously naive 
about a lot of things, I certainly hope the basis on which 
our friendship is founded is not included in your statement.

Doug Cassel has made some progress on his research, and 
talked with Professor Bittker of Yale who had just completed 
a book on black reparations. It will not be published before 
the end of the year, but he is sending us a copy of his trans­
script. So, please spur your fact-finders to new efforts.



Miss Jean Fairfax 
Page Two 
April 10, 1972

Finally, thanks for the offer of your Philadelphia 
apartment to use while I finish my book this Fall. I 
haven't yet decided what to do, but received a very fine 
offer from the Minnesota Law School which I may not be 
able to afford to turn down.

Sincerely,



BOOK REVIEW

Horowitz and Karst: Law, Lawyers and 
Social Change: Cases and Materials 
on the Abolition of Slavery, Racial 

Segregation and Inequality of 
Educational Opportunity

Derrick A. Bell, Jr.

R ep rin ted  fro m

UCLA LAW REV IEW  
VO L. 18, NO. 3, F E B R U A R Y  1971

©  The Regents of the U niversity of California, 1971



BOOK REVIEWS
L aw , L aw yers and S ocial Ch a n g e : Cases and M aterials on t h e  Abolition  

OF S lavery, R acial Segregation and I nequality  of E ducational 
Oppo rtu n ity . By Harold W. Horowitz and Kenneth L. Karst. In ­
dianapolis: Bobbs-Merrill Co., Inc., 1969. Pp. xxiii, 531. $11.50.

Tw o professors a t the U C L A  Law  School, long associated  
with writings offering support and innovative suggestions for those 
utilizing the law to correct racial injustices,^ have combined their 
considerable talents in an impressive and pioneering work which 
presents the m aterial of a  legal process course in a  new and exciting  
form at and, in addition, provides badly needed aid to those seeking 
teaching m aterials for courses on race and the law. While unlikely 
to fill totally the needs of law teachers in either area. Law , Law yers 
and Social C hange  serves as a  valuable pedagogical stepping stone 
in legal education. Some law schools have neglected the recognized 
need for an introductory offering on the Am erican legal process. 
M ost have failed even to recognize their obligation to offer a course 
on the law’s role in perpetuating the nation’s oldest and most serious 
social problem. The Horowitz and K arst book provides a  means of 
correcting these shortcomings, and enables the teaching of both 
subjects in a  manner likely to reap valuable benefits to students and 
teachers alike.

Courses intended to give an overview of the legal process are  
not new, but all too frequently, well-intentioned efforts to teach  
fledgling law students the workings of courts, legislatures, and 
adm inistrative bodies, engender more confusion than clarity . The  
selection of appropriate m aterials is difficult, for to avoid an overlap  
with cases the students encounter in their basic first year courses, 
the m aterials selected m ay contain concepts too complex for in­
experienced law students to understand readily.

M oreover, if, as often happens, the course is presented via the

1 S ee, e.g ., Horowitz, Unseparate but U nequal— T h e  E m erg in g  F o u rteen th  
A m endm ent Issue in  Public School E ducation , 13 U.C.L.A. L. R ev. 1147 ( 1 9 6 6 ) ;  
Horowitz, F o u rteen th  A m endm ent Aspects of Racial Discrimiruition in “Private*’ 
H ousing, 52 Calif. L . Rev. 1 ( 1 9 6 4 ) ;  Horowitz, T h e  M isleading Search  fo r  “State 
A ction” U nder the F o u rteen th  A m en d m en t, 30  S. Ca l . L . Rev. 208 ( 1 9 5 7 ) ;  Horowitz 
& Neitring, E qu a l Protection Aspects o f Inequalities in Public E ducation  and Public  
Assistance Program s fro m  Place to Place W ithin a State, 15 U.C.L.A. L. Rev. 787 
( 1 9 6 8 ) ;  Karst, Invidious D iscrim im tio n : Ju stice  Douglas and  the R etu rn  o f the  
“N atural-Law -D ue-P rocess Fo rm u la ,” 16 U.C.L.A. L. Rev. 716 (1 9 6 9 ) ;  Karst, L e g ­
islative Facts in Constitutional Litigation, 1960 Su p . C t . Rev. 7 5 ; Karst & Horowitz, 
R eitm an v . M u lk e y : A Telophase o f Substantive E qu al Protection, 1967 Sup. C t . R ev. 
3 9 ;  Karst & Van Alstyne, State A ction, 14 Stan. L. R ev. 3 (1 9 6 1 ).

616



BOOK R EV IEW S 617
classical socratic method, the explanation of the legal process will 
likely be weighted too heavily on objective, logical analysis. Too  
little consideration, in the form of economic, social and political 
ramifications of the litigation, m ay be given to the possibility that the 
decision sought to be harmonized with existing law through logic 
and traditional legal standards was actually the result of the law­
m aker’s non-rational politics, prejudices, and carefully calculated  
(albeit concealed) conclusion that his action would benefit that 
aspect of society with which he most closely identifies. The result is 
a course that m ay be intellectually stimulating and academ ically  
satisf5dng but totally removed from  the reality of the legal process.

Professors H orowitz and K arst have bridged both the case 
selection and reality gaps that plague first year legal process courses. 
M aterials dealing with race, a subject of great intrinsic interest to 
contem porary students, are utilized as the vehicle for analyzing how 
the various units in the legal system  contribute to the law’s func­
tioning. Carefully selected writings and copious notes are organized 
to assist students to identify not only the competing social interests 
that underlie most decisions, but also the considerations of societal 
self-interest that frequently influence the result.

F o r example, insight into the “a rt” of statutory  interpretation  
is gained by reading Ja ckson  v. Bulloch.^  In  that case, the Connecti­
cut Supreme C ourt concludes, after more than a little effort, that a  
statute barring the importation of slaves (clearly  enacted less to 
-further abolition than protect the jobs of white workers)® also 
prevented an out-of-state slave owner from regaining his escaped  
slave whom he had brought into the state for a  tem porary, albeit 
substantial, stay. A t another point, the limitations, both legal and 
practical, on the President’s executive powers are clearly revealed in 
a  well-chosen selection of m aterials on the Em ancipation Proclam a­
tion of 1863.^ A fter D red  Scott v. Sandford,^  the editors need add 
only a  few words to explain® why courts generally refuse to give 
advisory opinions or otherwise perform  their function unless there is 
a  real dispute to be resolved. Judicial review of legislative “purpose,” 
“m otive” and “intent” are appropriately discussed'^ following a  
lengthy opinion striking down tuition grants,® a seemingly legitimate

2 12 Conn. 39  (1 8 3 7 ) ,  reprinted  in  H. Horowitz & K. Karst, Law, Lawyers 
AND Social Change 59 (1 9 6 9 ) [hereinafter d ted  to  page num ber o n ly ].

3 P . 65.
4 Pp. 103-09.
» 60  U .S. (19  H ow .) 393 (1 8 5 7 ), reprinted  p. 84.
« P . 99.
7 P. 287.
8 Poindexter v . Louisiana F in an d al Assistance Com m ’n, 275 F .  Supp. 833 (E .D . 

L a . 1 9 6 7 ), a ffd  p er  curiam , 389 U .S . 571 (1 9 6 8 ) ,  reprinted  p. 274.



618 UCLA LAW  R EV IEW [Vol. 18:616
method of financing public education but here invalidated as simply 
another scheme to circum vent school desegregation.

T o  cite but one other example, the oft-discussed appropriate­
ness of the Supreme C ourt’s citation of sociological data in B row n  
V . B oard  of Education,^  to show the harm ful effects of racial segre­
gation, is examined^® in the light of the contrary  conclusions reached  
by courts in earlier racial cases without benefit of any evidence. 
W hat these courts did, the editors observe, was typical of w hat 
most appellate courts have done: “ [th ey] simply decided the issues 
of legislative fact on the basis of the Ju stices’ own education, experi­
ence and insight.” ^̂

Law , Law yers and Social C hange  covers four m ajor areas: the 
abolition of slavery, public school segregation, desegregation under 
B row n, and de facto  school segregation. In  each of these areas, the 
editors’ notes point out, frequently through questions, the m ajor 
issues. The questioning process, although a t some points clearly  
overdone, does insure that class discussions will be lively, and that 
students will a t least be alerted to the m ajor problems, a  consider­
able accom plishment for a  first-year legal process course.

Law  teachers will reach varying decisions on the degree to 
which Law , Law yers and Social C hange  succeeds as a medium for 
explaining the legal process.^^ B u t whatever its acceptance as a

® 347 U .S. 483 (1 9 5 4 ), reprinted  p. 186.
10 P . 195.
11 P p . 122, 143-44. See  Gong L um  v. Rice, 275 U .S. 78 (1 9 2 7 ), reprinted  p. 1 5 6 ; 

Plessy V. Ferguson, 163 U .S . 537 (1 8 9 6 ), reprinted  p. 1 3 0 ; R oberts v. City of Boston, 
59 M ass. (5 Cush.) 198 (1 8 5 0 ) , reprinted  p. 114. In  Plessy, the C ourt citing R oberts  
rejected the contention th at enforced segregation brands the colored race with a  
badge of inferiority. Social prejudices cannot be overcom e by legislation, the C ourt 
added, concluding: “If  one race be inferior to the other sociaJly, the Constitution of 
the U nited States cannot p ut them  upon the same plane.” 163 U .S . a t 552.

12 Undoubtedly, m any legal process teachers will conclude th at w hatever its 
intrinsic interest, a full semester of cases dealing with racial discrimination is simply 
too m uch. They m ay fear th a t focusing the course exclusively on one area of the 
law  will result in the loss of issues and problems th at do n ot occur in th at area. 
M oreover, it is possible th at the legal system  functions m ore objectively in fram e­
w orks other than the highly em otional atmosphere th at frequently permeates the 
proceedings when the issue involves race. B u t there are advantages to teaching legal 
process using one subject m atter. W ithout the necessity of jum ping from  one subject 
to  another, students need n ot continuingly shift m ental gears but can become oriented  
to  the area and develop a  “ feel” for the intangibles th at comes with fam iliarity.

Proponents of either view  can find support for their position in presently avail­
able legal process books. E .g .,  C . Auerbach, L. Garrison, W. Hurst & S. Mermin , 
T he Legal Process (1 9 6 1 ) (legal materials focusing upon industrial accid en ts); P . 
M ishkin  & C. M orris, On Law in Courts (1 9 6 5 ) (m aterials used from  a num ber of 
legal a reas). The latter process is the m ost frequently used. S ee  R . Covington, E .  
Stason, J .  Wade, E . Cheatham & T . Smedley, L egal M ethods (1 9 6 9 ). I t  is also 
followed in the highly regarded, albeit still unpublished, H . H a rt  & A. Sacks, The



1971] BOOK R EVIEW S 619
teaching tool for perspective courses, the book does partially fill the 
need for a text usable by the growing number of law schools where 
decisions have been made to find room in the curriculum  for a  course 
on racial problems.^^

W hen, after ten years as a practicing civil rights lawyer, I  
accepted a  law school’s invitation to teach a course on the subject, 
I  discovered that, despite the increasing legal and political impor­
tance of civil rights litigation during the 1 9 5 0 ’s and 1960 ’s, there 
were simply no published law school texts devoted to racial cases. 
There are, of course, sections on civil rights in constitutional law 
casebooks, but none of these provide the coverage of cases and 
m aterials needed for the in-depth study of the subject that is pos­
sible during a  full sem ester course.^^ There is the classic work on 
civil rights and civil liberties by Professors Em erson, H aber and 
Dorsen,^® the second volume of which is devoted to racial cases. 
While a valuable research tool and civil rights law yer’s deskbook, 
there are simply too many citations, m any of them buried in lengthy  
notes, and too little explanation of their significance to enable its 
effective use as a  teaching aid.

Fortunately, I obtained a copy of Law , Law yers and Social 
C hange  (then still in mimeographed form ) from Professors H oro­
witz and K arst. The m aterials provided an ideal framework for 
reviewing the role that law and lawyers played in abolishing slavery  
both in England and America.^® The m aterials on slavery and the 
W^^-Brown litigation to desegregate public schools occupy just under 
200  of the book’s 531 pages. T hey contain cases, few of which are

Legal P rocess: Basic Problem s in the M aking and Application of L aw  (T en t. ed. 
1 9 5 8 ).

13 A recent study indicates th at a num ber of law schoob are instituting courses 
in race relations law. The curriculum changes, in some p art due to  the presence of 
growing numbers of m inority group students, were basically attributed to  “ the desire 
of the faculty and the general student population for ‘relevancy’ to m odern social 
problems.” Association of American Law Schools, 1970 Annual Meeting P ro­
ceedings, pt. 1, § I I , a t IS (1 9 7 0 ) (T h e L aw  Schoob and the M inority Group L aw  
S tu d en ts).

14 Editors of some constitutional law  casebooks have publbhed separately those 
sections of their books dealing with civil rights and civil liberties. S ee  G. Gunther & 
N . D owling, Individual R ights in Constitutional Law ( 1 9 7 0 ) ;  W . L ockhart, 
Y . ELamisar & J .  Choper, Constitutional R ights and L iberties (3d  ed. 1 9 7 0 ). 
B u t, of course, less than a third of those volumes b  devoted to  racial cases.

13 T . E merson, D. Haber & N . D orsen, P olitical and Civil R ights in the 
United States (3d  ed., student ed. 1 9 6 7 ).

18 The need for a  teaching text on racial cases b  n ot limited to  law schoob. 
L aw , Law yers and  Social C hange  b  in use in several undergraduate courses devoted  
to  racial problems. In  hb  review  of the book, one law  professor reported he used 
the book in a special pre-legal course for m inority group students, and found it 
“highly instructive.” Seeligson, Book Review, 47 J .  Urban L a w  242 n .l  (1 9 6 9 ).



620 UCLA LAW  R EV IEW [Vol. 18:616
available in other law school texts, that are invaluable to a  full 
appreciation of the law’s effect on race relations in this country.^^

Law  texts, particularly those dealing with subjects of con­
tem porary social concern and activity , are foreordained to early  
obsolescence by the steady stream  of new developments. Because  
events in the school desegregation area have moved rapidly since 
the book went to press in 1969,^® Law , Law yers and Social C hange  
is not immune to this problem. Although the editors warn that their 
work is intended to examine institutions, not present doctrine,^® 
those using the book as a  substantive text for a  course on racial 
problems can expect some difficulties with out-of-date m aterial.

The more recent developments in the school field (as well as 
appropriate cases concerning other areas of racial discrimination) 
can be reproduced and distributed to students as a  supplement to 
the text. B u t the appropriate objective in a course on race in Am er­
ican law is less the exposure of students to every new development 
in the field than it is the provision of a foundation of understanding 
about how the law functions when relatively powerless minorities 
seek to use legal standards established by the m ajority to change 
m ajority policies and practices which clearly violate those standards. 
Students must learn to comprehend the significance for blacks of

17 Cases involving slaves have n ot frequently found their w ay into law school 
te x ts ; those th at have are intended to  m ake a point in property or agency th at 
reminds one all too  painfully of how  effectively the A m erican legal system encom ­
passed slavery. S ee, e.g., W . Seavey, H. Reuschlein & L . Hall, Cases on Agency 
AND Partnership 103-04  (1 9 6 2 ) ,  which includes Chastain v . Bow m an, 1 Hill 270  
(S .C . 1 8 3 3 ), where the cou rt finds th at a  slave can be an agent for his m aster, 
statin g: “ There is no condition, how ever degraded, which deprives one of his right 
to  a ct as a  private ag en t; the m aster is liable even for the a ct of his dog done in 
pursuance of his com m and.”

IS In  Southern school litigation, the book’s materials stop short of the Supreme 
C ourt’s final rejection of the “ all deliberate speed” concept in Alexander v . Holmes 
C ounty, 396 U .S . 19 (1 9 6 9 ) ,  and, of course, do not cover cases (although the issues 
are raised) interpreting B ro w n  to  require Southern school systems to  eliminate all 
racially identifiable m inority schools even if this necessitates large-scale bussing of 
pupils. Such bussing is n ot imposed on N orthern districts where serious racial im­
balance in the schools is attributed  to  segregated housing patterns. Argum ent on 
these questions was heard this term  by the Supreme C ourt in a  num ber of cases. See  
39 U .S .L .W . 3157-61  (U .S . O ct. 20 , 1 9 7 0 ). W h atever the C ou rt’s decision, it is likely 
th a t litigation on these issues will continue.

B u t new issues have arisen in the school field n ot covered in the book. The  
black com m unity’s growing disenchantm ent with the slow pace of school integration, 
has manifested itself in litigation objecting to  elimination of racial imbalance by the 
bussing of black but not white children. See  N orw alk C O R E  v . N orw alk Bd. of E d u c., 
423 F .2d  121 (2d  C ir. 1 9 7 0 ). Blacks have m ade efforts to  reject integration where 
implem entation of th at policy conflicts with com m unity control projects. S ee  Oliver 
V. D onovan, 293 F .  Supp. 958 (E J 5 JN .Y . 1 9 6 8 ) ; Brief fo r C O R E  as Amicus Curiae, 
Swann v . Cbarlotte-M eddenburg Bd. of E d u c., —  U .S. —  (A pr. 20 , 1 970).

1» P. 1.



1971] BOOK R EV IEW S 621
legal developments dealing with race, as opposed to the often very  
different significance of these developments for whites. M any of the 
statutes and decisions included in Law , Law yers and Social C hange  
are adm irably suited to aid in the attainm ent of this understanding.

F o r example, the slavery m aterials are built around a  group  
of cases, each of which presents the question whether a  slave is 
freed when taken by his m aster into a jurisdiction where slavery is 
forbidden or been abolished.^® While consciously (and conscien­
tiously) dealing with the issue of human freedom, the opinions 
quite candidly weigh the moral benefits of emancipation against the 
difficulties, including economic loss, fear of racial strife and social 
turmoil, which granting freedom for blacks might create for whites. 
B u t the calculated evaluation of these factors, which appear so 
calloused to contem porary readers, are quite analogous to the con­
siderations that led the Supreme Court to delay implementation of 
its order to end the maintenance of segregated schools despite its 
finding that segregation violated the constitutional rights of blacks 
and generated feelings of inferiority as to their community status 
that m ay “affect their hearts and minds in a way unlikely ever to 
be undone.”^̂

These “conflict of slavery” cases were the predecessors of the 
famous but generally neglected Supreme Court decision in the 
D red  Scott case. E xcerpts from Chief Justice T an ey ’s m ajority and 
Justice C urtis’ dissenting opinions are included by the editors,^^ both 
of whom express their regret a t having completed law school with­
out having read the case they deem “one of the most im portant 
judicial decisions an Am erican court ever m ade.” ®̂

A few writers have criticized the failure of constitutional law  
texts to include the D re d  Scott case.^^ T he omission, except for a

20 Som erset v . S tew art, 98 E ng. Rep. 499 , 1 Lofft 1 (1 7 7 2 ) , reprinted  p. 11 
(L o rd  M ansfield’s fam ous decision that in the absence of a statu te, a  slave owner 
could not recover an escaped slave brought voluntarily into E n g la n d ); The Slave 
G race, 166 E n g . Rep. 179 (1 8 2 7 ) , reprinted  p. 25 (holding th at Som erset did not 
provide a  basis for freeing a slave who while brought into England from  Antigua 
by her m aster then returned home with her mistress before claiming her freed o m ); 
Com m onwealth v . Aves, 35 M ass. (18  P ick .) 193 (1 8 3 6 ) , reprinted  p. 44  (Chief 
Ju stice  Shaw  ruling th at because slavery was invalid in M assachusetts, an out-of-state  
slave owner could n ot recover a  slave brought voluntarily into the state under U .S. 
Const, art. IV , § 2 (th e “ fugitive slave” provision), which was interpreted as apply­
ing only to  slaves who escaped and fled into the s t a te ) ; Jackson  v . Bulloch, 12 Conn. 
39 (1 8 3 7 ), reprinted  p. 59 (a  result similar to  th at in A ves, based upon a state statute  
prohibiting the im portation of slaves into the s ta te ) .

21 347 U .S. a t 494.
22 Pp. 84-98.
28 P . 2.
24 Kinoy, T h e  Constitutional R ight o f N egro  F reed o m , 21 R utgers L . R ev. 387, 

391 (1967).



622 UCLA LAW  R E V IE W [Vol. 18:616
short excerpt or brief mention in a  footnote, is justified apparently  
by the fact that the adoption of the fourteenth amendment is thought 
to have overturned Chief Justice T an ey ’s m ajority decision, i.e., 
that blacks, whether slave or free, were citizens neither of the United  
States nor the states of their residence.

In  strictly  legal term s, the fourteenth amendment did overturn  
D re d  Scott. B u t as far as black people are concerned, this amend­
ment, exacted alm ost by duress from a  nation which by 1868 was 
w eary of sectional division and whose people had never been 
enthusiastic about accepting blacks as co-equals, has proven an  
only partially effective shield against the forces that hailed the 
D re d  Scott decision. Indeed, even from a  legal standpoint, the 
promise of citizenship to blacks was seriously eroded by the series 
of Supreme C ourt decisions which transform ed constitutional pro­
visions intended to protect the personal rights of the newly freed 
slaves into instruments that served to insulate effectively private  
industry from government control. Although Law , Law yers and  
Social C hange  includes several of these cases as well as com m entary  
on the political and social clim ate of the period. Professors Horowitz 
and K arst surprisingly subscribe to the view that D re d  Scott was 
overruled by the adoption of the fourteenth amendment.^® Despite 
their statem ent of its im portance, they cite com m ents, including one 
by Chief Justice Charles Evans Hughes that D re d  Scott was one of 
the C ourt’s “self-inflicted wounds,” ®̂ which contribute to the posi­
tion, understandable for whites but egregious to blacks, that the 
case was a m istake when decided, and now is only a  historical 
curiosity.^^

B u t both history and current events support the w riter in 
whose view Chief Justice  T an ey ’s most famous opinion “had, and 
continues to have, the most extraordinary im pact upon American  
history and Am erican law.’’ ®̂ Taney worked from an all too accu­
rate foundation of historical fact when he observed in hi<; famous 
dicta (regretably omitted from the portions of the opinion included

25 Pp. 84, 102.
26 99

27 In another instance of unthinking conform ity to  the traditional American  
historical perspective, the editors, in referring to the protections granted slave owners 
in the original U .S. Constitution, art. I , § 2 (slaves to  count as three-fifths of a 
p erson ), a rt. I , § 9 (im portation of slaves n ot to be prohibited before 1 8 0 8 ), art. 
IV , § 2 (au th ority  for federal fugitive slave la w s), rep ort th a t the three provisions

represented a compromise provision, for the new hlation, on the Question of the 
validity of slavery.” P . 43 . I t  m ay have been comprom ise for whites, but for blacks, 
it was capitulation on a m oral issue from  which the country has never recovered. 
See  L yn d , Slavery and  the F o u n d in g  F a thers, in Black H istory 117 (M  D rim m er 
ed. 1 9 6 8 ).

28 K inoy, supra  note 24 , a t 391.



1971] BOOK R EV IEW S 623
by Horowitz and K a rs t) that blacks, regarded from the beginning 
as inferior beings unfit to associate in social or political relations 
with the white race, “had no rights which the white man was bound 
to respect.” ®̂ And despite the Civil W ar and the fourteenth amend­
ment, events long after his opinion was supposedly “overturned” 
continued to add credence to T an ey’s position. The Supreme Court, 
with the country’s acquiescence, renewed rather than repudiated  
T an ey ’s view that N egro inferiority justified their maintenance in 
a subordinate role in every phase of Am erican life.

Horowitz and K arst convey some sense of what occurred. T hey  
note the Supreme C ourt’s insensitivity if not hypocrisy in G um m ing  
V . R ichm ond County B oard  of Education?^  Finding no constitu­
tional bar in a  Georgia school system ’s refusal to close a  white 
high school until facilities were provided for black high school 
students, the Court emphasized that the suspension of the N egro  
high school was “ tem porary.”®̂ Horowitz and K arst ask whether 
there is any difference between a perm anent and tem porary closing 
to students whose high school careers normally would last only a  
few years.®^ T hey also question the logic in the C ourt’s willingness 
to decide post-Civil W ar school segregation questions as though the 
validity of the practice was well settled.®^ T hey note the C ourt’s 
reliance on precedent decided long before the enactm ent of the 
fourteenth amendment, and its simplistic application of Plessy v. 
F ergu so n , i n v o l v i n g  segregated railroad cars, to the infinitely more

28 60 U .S. (1 9  H ow .) a t  407. The legality of slavery m ade the tru th  of T an ey’s 
statem ent self-evident in the South, but there was overwhelming evidence to  support 
its accuracy in the N orth  as well. H orow itz and K arst refer to the severe legal dis­
abilities imposed on blacks by N orthern states with an aU too brief quote from  one 
of several excellent w orks of the period. P . 112, quoting  L. L itwack, North of Slav­
ery : T he Negro in the F ree States 1790-1860 (Phoenix ed. 1 9 6 5 ). See also E .  
B erwanger, T he F rontier Against Slavery (1 9 6 7 ) ;  L. Ratner, P owder Keg: 
Northern Opposition to the Antislavery M ovement 1831-1840 (1 9 6 8 ).

As one fam ous, foreign observer, De Tocqueville, w ro te : “ R ace prejudice seems 
stronger in those states th at have abolished slavery than in those where it still exists, 
and nowhere is it m ore intolerant than in those states where slavery was never 
know n.” A. De T ocqueville, Democracy in America 343 (A nchor Books ed. 1 9 6 9 ).

While the N orthern states voluntarily abolished slavery, the authorities d ted  
above m ake clear th at reasons of economics and racism and n ot m orality were the 
m ajor m otivating factors. The statutes themselves d ted  as the basis for abolition the 
concern for “public safety and w elfare” and noted th at slavery was “injurious to  the 
poor and inconvenient.” See  Jackson v . Bulloch, 12 Conn. 39 (1 8 3 7 ), reprinted  p. 65. 
Again, De Tocqueville summed up the situation in a  sentence: “ In the United States 
people abolish slavery for the sake not of the Negroes but of the white m en.” D e  
T ocqueville, supra, a t  344.

30 175 U .S. 528 (1 8 9 9 ) , reprinted  p. 151.
31 Id . a t 545.
32 Pp. 153, 224.
33 P. 160.
34 163 U .S. 537 (1 8 9 6 ) , reprinted  p. 130.



624 UCLA LAW R EV IEW [Vol. 18:616
difficult issue of segregated schools. Thus did the Supreme Court, 
as one w riter suggests, return the solution to racial problems to 
local communities, “subject to the limitation that chattel slavery  
should not be reestablished.”®® And it was through this process that 
the society created “ a discipline which would be as effective as 
slavery in maintaining N egro subordination to the white race.”®®

The significance of underestimating the perniciousness and 
resilience of the D re d  Scott philosophy would be less if as Judge  
W isdom wrote a  few years ago, '̂■Brown erased D red  Scottr^"^ And 
yet the decade and more of T^osi-Brown litigation, the highlights of 
which are set forth in Chapter Three of Law , Law yers and Social 
C hange, clearly reflect the continuing vitality of the beliefs, if not 
the words, of Chief Justice  Taney. V irtually all of the Supreme 
Court Y»osi-Brown school decisions have supported the basic prin­
ciple of equal educational opportunity. Y e t, the C ourt’s efforts to 
implement this principle were hampered greatly by the self-imposed 
“all deliberate speed” standard for compliance, a  standard quickly 
construed to mean that desegregation of blacks was to proceed a t  
the convenience of whites. The quite predictable resistance to 
school desegregation by some whites, supported by the apathy of 
most of the rest, hardly required this judicial encouragement.®®

The combined weight of this opposition served to limit m ean­
ingful desegregation in schools and other public facilities until en­
actm ent of the Civil Rights A ct of 1964.®® T he A ct was a  result of 
the pressures exerted by civil rights’ activists across the land who 
literally, through their direct protests against racial segregation, 
forced the nation to give a t least minimal substance to the m andate 
of B row n  and to abandon a t least in p art its ideological commitment 
to D red  Scott.

P . 128, quoting  R . Gabriel, T he Course of American Democratic T hought 
13S-36 (1 9 4 0 ).

se Id .
United States v . Jefferson County Bd . of E d u c., 372 F .2d  836, 873 (Sth Cir. 

1 9 6 6 ), reprinted  p. 353.
88 As the book makes clear, the policy of recognizing racial injustices and then 

delaying implem entation of the rem edy was n ot invented by the B row n  C ourt. P . 
223. The A ct which abolished slavery in the British colonies (3  & 4  W ill. 4 , c. 73) 
took effect in 1834 but provided th at slaves would become “ apprentice labourers” 
to  their form er masters until 1840. P . 38.

Several N orthern states abolished slavery through laws similar to  a  “Pennsylvania 
statu te. A ct of M arch  1, 1780, c. 146, [w hich] provided th at no person b om  in the 
state  after the date of enactm ent should be deemed a  slave” . P . 41 . Slaves’ children 
were considered indentured servants of the m aster of their parents until age tw en ty- 
eight. P p . 4 1 -42 . S ee  Springer, T h e  U nconquerable Prejudice o f Caste— CivU R ights  
in E arly  Pennsylvania, S D uquesne L . R ev. 31 (1 9 6 7 ) .

42 U .S .C . § 2000 a-h  (1 9 6 4 ) .



1971] BOOK R EV IEW S 625
I t  is significant, however, that the weakening of the D re d  Scott 

philosophy required direct action and economic pressures, with the 
role of the lawyer being necessarily supportive. T o  the extent that 
Law , Law yers and Social C hange  does not expressly make this 
clear, Horowitz and K arst endanger the achievem ent of their addi­
tional purposes— “demonstrating to the law student some of the 
ways in which the legal system  can be made an instrum ent for effect­
ing changes in society.” ®̂ Of course, lawyers and litigation played  
an im portant role in the success of the sit-ins, freedom rides and 
other direct action protests, extending in the process constitutional 
protections in the free speech area. And, similarly, Granville Sharp, 
Jam es Stephens, Charles Sumner, and R obert M orris, whose impor­
tance is reviewed by Horowitz and Karst,^^ helped secure the aboli­
tion of slavery in England and Am erica. B u t lawyers alone have not 
been able to bring about the essential changes in economic interests 
and social outlook.

While one would have preferred that the editors make this 
point more directly, the reader m ay reach the conclusion that the 
law, and the lawyers who serve it, can a t best exert limited leverage 
in bringing about social change designed to remedy large scale racial 
injustices. The conclusion m ay be inferred not only from  the 
historical m aterials in Chapters One and Two but also from the 
plethora of current school issues in Chapter Four. The validity of 
de facto school segregation, under Brow n  or perhaps T itle V I of 
the 1964 Civil Rights A ct, and the relevance of com pensatory educa­
tion to the B row n  m andate, pose the old problem of how to get the 
white m ajority to allow blacks that “equal educational opportunity” 
without which the Supreme Court concluded it to be “doubtful that 
any child m ay reasonably be expected to succeed in life.”^̂

The m aterials in the book concerning the efforts of black  
people to utilize the legal process to obtain quality education for 
their children provide a  valid and valuable means of conveying an  
understanding of the legal process to law students. B y  raising the 
basic legal process points in the context of almost two hundred 
years of litigation and legislation focused on race, the reader can  
see for himself how predictably these cases and laws balance the 
interests of the white m ajority against the entitlement of blacks to 
even the most basic rights. W hatever the meaning of precedent, 
the standards for statutory  interpretation, the limits on the E xecu ­
tive’s power, and the presence or absence of appropriate restraints

40 p . 1.
41 Pp. 7-10, 40, 114.
42 347 U .S. a t  493 , reprinted  p . 190.



626 UCLA LAW  R EV IEW [Vol. 18:616
on the administrative agency, the particular racial issue is most 
likely to be decided in a form favorable to the black peUtioner 
when his interests can be harmonized with economic, political and 
social interests of the white majority.^®

A final caveat may be in order for those utilizing Law, Lawyers 
and Social Change in a race and the law course. The editors insis­
tent introduction of questions and comments to raise legal process 
points can prove disquieting when one is concerned primarily with 
the racial issues. It is, for example, unnerving to read an opinion 
like Dred Scott, which had the most devastating effect on the future 
of blacks, and then in the notes following the decision to read the 
editors’ discussion of collusive suits.'‘  ̂ One quickly adjusts to the 
process, however, and it soon appears that both the racial and legal 
process points are made clearer by being considered together.

The experience is somewhat reminiscent of James Baldwins 
brilliant essay on racial problems in America, Letter from a Region 
in My Mind, initially published in a magazine with a national 
reputation for sophistication and chic.̂ ® In the article, as Baldwin 
utilized his unique prose gifts to castigate white society for its lack of 
conscience and morality manifested by the nation’s racist Practices, 
the reader became aware of the seeming incongruity of Baldwins 
words flanked by page after page of glossy advertisements of 
jewelry, automobiles, furs, perfumes, all the materidistic status 
svmbols for which Baldwin was claiming the country had bartered 
its soul But after a time, it seemed natural and appropriate that, 
acting as a modern-day Jeremiah, Baldwin’s voice should be heard 
amidst the idols he deplores.

It is not at all clear from the contents of Law, Lawyers and 
Social Change, that Horowitz and Karst seek to become the Jere­
miahs of the legal system, but intended or not, their utilizaUon o 
racial problems in a legal process text serves, perhaps rnore effec­
tively than any other area of the law, to inform the student as to the 
American legal system’s potential for fairness, objectivity and justice. 
On the record in racial matters, the evidence prior to Brown was, 
to put it kindly, not good. And as to the Brown decision and what 
has followed it, perhaps James Baldwin is as instructive as the legal 
commentators. In the same essay referred to above, he wrote:

Most of the Negroes I know do not believe that this immense conces-

43 See  Bell, School Litigation Strategies fo r  the 197 O's’. N ew  Phases in  the C on­
tinuing Quest fo r  Quality Schools, 1970 W is. L . R e v . 2S7. ^

«  Ne w ’ Y orker, Nov. 17, 1962, at 59, repH nted a s j .  f  f  ***
C ro ss : L etter fro m  a R egion in M y  M in d  in T he F ire Next T im e  29 (1963).



1971] BOOK R EV IEW S 627
sion would ever have been made if it had not been for the competition 
of the Cold War, and the fact that Africa was clearly liberating her­
self and therefore had, for political reasons, to be wooed by the de­
scendants of her former masters. Had it been a matter of love or 
justice, the 1954 decision would surely have occurred sooner; were 
it not for the realities of power in this difficult era, it might very well 
not have occurred yet.*®

Little more can be said in favor or a law school text devoted to race 
and the legal process than to note that its materials permit the 
reader to reach conclusions about both that accord with the views 
of perhaps the most prophetic commentator on racial problems of 
our time.

Derrick A. Bell , jR.f

*« J .  Baldwin, D ow n at the C ro ss : L etter  fro m  a R egion in  M y  M in d  in The 
F ire Next T im e 101 (1 9 6 3 ).

t  A .B ., Duquesne U niversity, 1 9 5 2 ; L L .B .,  University of Pittsburgh, 1957. L ectu rer  
on L aw , H arv ard  L aw  S chool; M em ber, California, D istrict of Colum bia, New  Y o rk , 
and Pennsylvania Bars.



DEPARTM EN T O F H EALTH . ED UCATION. AND W ELFA R E
W A S H IN G T O N . D .C , 20201

September 1, 1966
OFFICE OF THE SECRETARY

Miss Jean Fairfax 
N.A.A.C.P. Legal Defense and 

Educational Fund, Inc.
Suite 2030
10 Columbus Circle
New York, New York 10019
Dear Jean:

I thought you would be interested in receiving the enclosed copy of 
a page from the Congressional Record on which is set forth the amend­
ment that would completely emasculate Title VI if it were enacted into 
law. The amendment failed in the House by only nine votes.
Set forth below is the so-called "Callaway Amendment" introduced by 
Representative Howard H. Callaway of Georgia which was passed by the 
House. It provides that:

"Sec. 606. Nothing in this title shall be 
construed to authorize action by any department 
or agency to require the assignment of students 
to public schools in order to overcome racial 
imbalance."

My views on this amendment are contained in a memorandum, a copy of 
which is also enclosed. I think it is very important that civil 
rights groups be aware of the danger to Title VI encompassed in 
this amendment and take appropriate action to see that it is not 
passed by the Senate.
With the Senate debate on the Civil Rights Act of 1966 scheduled to 
begin next week, I think it also very important that civil rights 
groups provide friendly Senators with information about the diffi­
culties of Southern school desegregation with which they can 
counteract the wild charges being flung by Congressmen representing 
the South. I am certain that Task Force personnel have provided 
you with detailed complaints concerning the difficulties their 
contacts have encountered in trying to attend desegregated schools. 
Such illustrations would be very helpful when debate on amendments 
to Title VI begins in the Senate.



I shall expect to receive from you the reports suggested above,
Sincerely,

DERRTCK A. 'BELL, JR. 
Deputy Special Assistant to the 

Secretary for Civil Rights

Enclosures



GRESS

In a t e

iu g u st 1

lie Pacifi 
JapancM

fairs, to c 
cm of ad' 
13510, tc 
iity and 
I Area i: 
j and N< 
if to the 
jly 78 i 
ction nc 
11s, to au 
he Delm 
:c Buildit 
I Commt 
ng for tl 
; Raybur

inittcc N 
the statu ̂  
;nts of th 
luilding.
Hi.R. 166 
vearing, 
related hi 
great scj

)nal
Itle 44, Un 
itanccs wt 
d by mal 
the Supcrl 
ally Issuct 
Df Congrci 
in Individ' 
erlal fron:

I

I i

I i i 'i

/ir.NDMF.NT O FFER ED  B Y M R . W H IT E N E B  ]

Mr. WHITENER. Mr, Chairman, I: 
offer an amendment. |

The Clerk read as follows: \

A m e n d m e n t  offered by Mr. W h i t e n f r̂ : On 
page 80. between lines 6 and 7, Insert the Xol j

S  ™ r v i oI the c lv n  R ights Act' 
of 1964 (42 U.S.C. 2000d et seq.) Is amended 
by a d d in r a t  the end thereof the following

(a) Nothing contained m  th is
title shall be construed to
term ination of. or th e refusal to  grant or
continue, any Federal
any cause other th an  a violation
Sion of the Constitution, or an affirmative
provision of a sta tu te  of the United S te te^
w hich has been established by substantial

No rule, regulation, or order which 
may result In the term ination of. or the fa ll- 

'  ure^to grant or continue, any Federal ^ s te t-  
ance s S l l  be placed In effect i m l ^  It hae
been adopted after s e S
compliance with the requlremente of ^  
tlons 4-10. inclusive, of the Administrative
Procedure Act (5 U.S.C.

-fcl  A determ ination under th is title  to 
the effect th at discrim ination on the ground 
of race, color, or national origin exlste. hM 
existed, or In the futu re ’J.*?.
adm inistration of any program or ^ t lv l t y  
shall require a showing by substantial evl 
dence th a t In the adm inistration or o^ ratlon  
thereof, conditions or requirem ents are 
have been, or m ay be Imposed w ith 
tlve in ten t to exclude, or w ith  the n ecew an  
effect of excluding. Individuals from  partlch 
patlon in the benefits of such program «  
activ ity  solely upon th e ground of race, color
or national origin. .,4.,.,

“ ‘ (d) Nothing contained In th is title  shal. 
be construed to authorize any Federal d^ 
partm ent, agency, or officer to  Issue any nU 
regulation, or order for the purpose or wltt

controlling or regulating the adm in­
istration  or operation of any school, hosplta 
or other Institution for any purpose othe. 
th an  to provide equal opportunity for accea 
thereto by Individuals w ithout regard w 
race color, or national origin; or

" '(2 )  depriving any class of Individuals o  
th e  privilege of determ ining voluntarll; 
w hether or not to avail them selves of 
benefit provided by any program or actlv ltj 
or of th e facilities of any school, hospital, o 
other Institution.’ ”

Mr. McCULLOCH. Mr. Chairman. 1 
parliamentary Inquiry.

The CHAIRMAN. The gentlemai 
will state his parliamentary Inquiry.

Mr. McCULLOCH. Mr. Chairman. I 
It not customary for an amendment 0 
this length to be submitted to the m  

 ̂ noiity table so that we may know wn  ̂
is being discussed?



. /C ,

Hr. TIicoucra .iC/j, i.966
Aasiiitsxxt Gcr.C'rrJ. CounccI, Dî rlî ion of Lo;̂ I'ji3£ion
jDcrrlck A* Beil, Jr., Actin;rr Spoo.is.1 

to  th e  Scarete r y  for C i^ '-il Sights
H,R. 14765 (Civil rjLghts Act of i ’566)—ĵIc-ugo ?Ioor /aieiicreiiC to 'fltic Vi of fclio Civil Rii:;I;£a Act of I>-64 rc ilccicl Irhalcncc.

ihis Ir in rcspCTiSG to yevr subject t̂cnarcr.du.'ri of AcTUot 25, I96G, 
raquc5tir.3 our vievs on the position the Depertnent chanid tohe vith 
regard to tlia Cnllcvny anxenfnerst tl'vci; enprctcly include Title
VI a restriction cu ar^y DeptrtnerAul action to overcome rccinl iô bninnee.
It is the opinlca of this office th.iL tbs Heprirnnerci: should tnhe every 
rensonabic ctep to •prevciit this o:!7,CT4Aneni: iron chtnircir!̂  Scncto nnprovei. 
The provisioa deco cot have any cerinite rceninj end cs c result ic being 
ccruitrued by Northern Cengress-ru-in to pruvveet ccticn to correct recinl 
Ijcen lcncc ro cu ltin g  from cln In c tc  .».ituution5i end i s  being construcil by

Congi'cccetcn to Keen; thet 'iiinv cc.:i 2“:ot require: (on the -gf-ldcLlnc'S 
do) tlitt adoption by fcr-ucrly scyregeted school systcris of nLan;> tb.et %-ilI insure the cliniiraticn of the ccai school eystan.

thC: Tirnvn cesaIherc can be no doubt at this date that U:o icen-dete o. 
roy-uirss tlie elluiaetion of the dual schoel syst-en. The Court
held that only in this uay could Hegre chllJron be ŷrnrentced their 
right to ea ĉ ûai cducatiooai epportunitpu oGutbern schccl aystco.s 
vhich iinvn opted to nact the mndctc by freĉ ten cf choice picne
have, through such selccticn, pieced nuch of"the hardon for dcscgrcga- 
tioa cf their schools cn ITegro pupils and their p̂ irents.. In cone cases, 
pnrticclnrly vhere the nurrJber of IJcp.rees i:i the systen is snrdll, a free 
cnoice plnu Day effect the discstabUsln.cnt of cbe duel ccLosi cyst era. 
la aosu CSGC3, heu'-r'/er, a freedom cf choice plan* unless it  Is ;uiie to 
vork by huV.’ prodding, v ili result Ir. only a tchen number cf begroeo 
attending vhitc schools v/hilc Lhe e\:ei school system rernins intact,
Tlius, if tha restriction on racial iube.lnr,ce is ii:tererctcd to apply 
to cystons forr?iiriy segrogntci by lev. Title VI v ill be affectively 
ennsculnted vita regard to cbtslning csnpii:iacc isitli tbs Brem cesa,

'G’-i the findiiigs in tl\^ recent Oifice of Education report ^ Z v u :i l ity  
CL suacationai Cppcrtunity,*' it appears that the miî'»têaIice: cf ccgrcgatcd 
schGoia ia i-'02:them de facto situatiens deprives Heyro cbildrea of nu 
equal oducaticnal epportuuity in a way not substantiaily different ttum



0 - j  A c t  cr'ilf

tliat ituCfcrci by t'hca ia iiouthcra 8cIicolrj. V':>crc echcol cystcuia full 
to take a;iproprlate etcps to cIi>:;l.n:c’;:-3 jjucU cr^-c-aZicn.^ xc i5‘ 'jr4-:5.r;;en­
able to ccnclwde sruch oysten̂ a c:re dl::c'>ir,lnati:o tko l-k-.-.ro
ckxidrea and arc tî yoably at iiot ir. to-:yliancc vdth Title VX.
Eflorta to rcculrc cliainntiovi of £:ec:L di-vcrJU-incticn vc'cld icot be an 
effort to cbi:eln ’'corrccticu c-f faclnl irahalcncô ' but bo cn cf~
fort to insure that each calldrcn irccclve tb.elr rir,kL' to ar;
equal ocacational or/portundt-v̂ . The cdoptlca end ir.yltr,c-iLctic:; of 
cv:ch ii policy ere vital to an «ffcati70 Torthom cchcol proy,r<i’̂2 by 
this Departmeut- Adoption of the Callnv;oy ceendatat v:,li not 
specificaiiy prevent use of croh a policy (apnin, tha cin voiud. be 
to C'iir4l‘c,'ite dlocriiilriaticn and any corrccuion of racial i'̂ tcXvincc 
vouid be ncrely a coaccrritant ef the oliiinatiori end not the rca-aai 
for xt) but it ĉ alcl thcroû ĥ iy conrase the Icsua cad mho the policy irore difficult to carry out,
Siuller o:*.iovce:3crit prebleas ?vill ariao in hospital cad other compliance 
prcj?raa;a if the racial inbeleace aaeud:;;c-at i.:i <:dc;ptcd» Ary effort to 
deCeruuLno the nunher cf heyrans utiny e facility end eu indicntica fren 
uu that such ntmheru scan unnatirriil̂ iy ii'acil In viev of the ziueber cf 
Kogroeo in the community vill bo rcsictci on iho baois that ‘re ere *‘etCs>uptin̂  to cvû rcorc reclil
For iill above rcaocc.a and vunreral '̂izrc I ehell not set forth
here* It is vicei that this Ptyarvacat take all rocsenable atcya to 
prevent the e?::actmnnt of the Caliar:;’ into iau* I think
e ncetinp; to discuDO thin L:ntCcr a.-i::nld lo scbcdulci at the carlleot pooalbic tire.

cc; H. 2;aier::r. ::. Yeunaan
Mr. b. Sec'icy
Mr. F. ?. Libesi
Chron
CR File

DilBoll :d j  f ; 8 -3 0 -6o o

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